UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

HOIOH I_ 

75 Hawthorne Street 

Sin francisco, CA 94t05-3901 

Jlnuary 9 , 2008 

Jim Chamberlain 

President 

Sun Siale Bui d~rs.lnr_ 

1150 W. Washinl:\ton Saeel.Suile 120 

Tempe. AZ 85281 

CERTIFIED JI.IAILNQ,7005 2570 0001 8520 2680 

RETURN RECEiPT REQUESTED 

rN REPI.Y: AIR·5 

Docket No.: R9..{l7..().1 

RE: Construction Proje:cl l.oealed in Maricopa Counlv, AZ 

Dc~r Mr. Chamberlain: 

Enclosed is a Finding all(! Notice of Violation ("NOV") issued pursuant to SectioJl 

I J3(aXt) of the Clean Air Act. 42 USc. §§ 1-101· 7671q (Ihe" ACI"). The NOV selS fonh facts 

demonstr:l!ing Ihat Ih.- operation of a Sun State BUlldl'fS. Inc. ("Sun Slale") projttt localecI in 

Maricopa County. Anzona. I'loialed lI.egulalion Ill, Rule 310 oflhe fNmllIy approved Slme 

Implemenmtion Plan ("Sil'") for Ihe /I-faricopa Counly Ai r Quulily Depal1!llenl. 

You should be aware Ihal Seelion J 13(a) oflhe Ae! provides Ihal :uly time aller 

expiration of 30 da)'5 following the issuan<:e orlhis NOV. EI'A may issue an Order rcqulnng 

eomphance IIlth the rcquin:men!s of the SIP. issue an Ortler assessing a civil adminislT:lhle 

penalty. or commence a ciVil action seeking an injunction and/or a civil penally. Furthennon:, 

St'<:tion 113(e) orthe Ac\ provid<.'S for criminal penalties in cenain cases, 

Upon :l finding of adcquUlt evidence of a continuing violmion. EP,\ may place Sun SI~le 

on the List orViolnling Facilities. lli Srttion 306 orthe Act and the regulations promulgatCIJ in 

.1 0 C.F.R. Part 32, Such facility would be declared in<:hgiblc for participation in any federJI 

eOntT:ICl, gnlm. or loan, or 5ubal:reCmem thereunder 

If you" Ish to discuss the NOV or EPA's future enforcement intentions, you may request 

a confcrC'lIcc with EPA. TIle COli rerence will afford Sun Sla ~ an opportunily 10 present 

infonnmion bearing on the finding of vi01allOIl. Ihe nature of the violution. auy cffons you have 

taken to achieve compliance. and the steps YOII propose 10 take 10 achieve compliar>ee RcJcI'lut 

factors might include: 
1) any infonnauon demonstrJting that you relied on compli:mce assistanee provided by 

the EPA or siale agencies prior to recei"ing this NOV; 

2) misidentification of the proporr part)~ 

3) financial factors bearing on your ability to pay a civil penalty; 

of) other infom13tiOll on which }'Ou based a reasonable belief that Sun State's activities 

were in complianee with the applicable law. 

This information will be taken JIIto atcounl by EPA in any penalty or other enforcement 

proceedinG. E .. en if you arc unaware of uny such infonnntion. we arc extendi ng to you the 

opportunity to commence discu~sions concerning the abon:-described violations. 

Please ha\e ~'Our ouomey contact DU\'id Kim. Office ofRegiollal Counsel. at (415) 972-

3882. to request a conference. Such reqUC$1 should be made as soon as possible, but in nny evem 

no later than 10 working days after receipt of l11is Iratr. You may also com act John Brock, Air 

Enforcement Office, at (of 15) 972-3999. 

Director, Air 

Enclo5Llfc 

cc: Roben Kard, MCAQD 
I 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION IX 

75 Hawthorne St ... t 

San Franci$CO, CA ~105-3901 

JaQun y 9 , 2008 

fNREJ>LY: AlR·S 

REFER TO: Docht No,: R9·07-0J 

Roben Kard. Director 

Maricopa Counly Air Quality Depanl11em 

1001 N. Cel11ml Avenue 

?ho~ni . AZ 8500J 

RE: Sun State Builders, UK. Nonce and Finding of Viol arion 

'~~d' Enc losed for your mfoml:J.tlon is a copy of a Finding and Notice ofViol~tion issued to 

Sun State l3uilders. Joe, ("Sun Slat","), Sun State is the owner of a construction cOrnl)auy 

oper.ltlllg in ~ laricopa COUnly. Arizona. 

Sun Slate \·iolated Regulation 111. Rule 310 of the federally approved State 

ImplCI1lCIl1alion Plan for Maricopa Coum),. The l"OV has been issued pursuanl to Section 

113{a)(l) of the Clean Air Act, " 2 U,S,C. §§ 7401-7671 q. which provides III part: 

Whene' ..... 011 the basis of :my mfomlation a'Jibble to the Admmistnllor. 

the i\dminislT",ltor finds thai :Ul) person has violated or is in violation of 

any rcquirelllel1l or prohibition of iII1 applJcable IIlIP lementatioll ~n or 

pennit. the Administrator shall notify lhe person ,mil the State in" Ilich the 

plan applies orsueh liooing. 

The NOV infomlS SUII State that a conference on the maner mny be arrangcd by making a 

request to this office within 10 working dnys aftn receipt orlhe NOV. If such a conference;s 

held. you will be ad\'iSed and your participation would be welcome. 

If )"ou ha\e any questions coneenllng Ihis maller. plt:a5C conlact Du,id Kim. Office of 

Regional Counsel ~I (415) 972·3882. or John Brock of the Air Enforcement Ortice ~t (415) 972-

3999. 

Sincerely. 

Mk 

Director. Air 1\'lsion 

EnclO$un: 
UNn 'ED STATES 

ENVIRONMENTAL PROTECnON AGENCY 

REGION 9 

In the Mauer of: 

SUII Slale Builders. Inc _. 

Proceeding under Si:<:lion I 13{a), 

Clean Air Act. a.~ Amended 

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D()C ~l No. R9-07-04 

SECOND FINDING AND 

NOTICE or VIOLATION 

TItis Second Finding and Notice of Violation ("NOV") is issued pursuant to scction 

113(a)(I) of the Clean Air Act (the "AcC), 42 U.S.c. § 7413(a)(I). to Sun Slate Builders. Inc. 

("Sun State '"J for a vioblion of the Act at its project located in Peoria. Ari zona. 

The aut hority of III I' Administrator of the United Slales Environmental Protection Agency 

CEPA ") 10 issue this NOV purSUaIli 10 soxlion J J3{aXI) of the Act hm; been delegated to the 

Regional Admin slr~lOr of EPA R~giun 9. and redclegaled to Ihe Director. Air Division, EPA 

Region 9. 

SI,\TUTORY ANIl REGUJ.AIORY Alf rHORITY 

I. lbe Administrator of EPA. pursuant to authority under section 109 of the Act. 42 U.S.C 

§ 7409, promulgated the N~lional Ambient Air Quality Standards ("'NAAQS") for certain 

criteria air pollutants. 40 CF.R . .§§ 50.9. 50.10. 

2. Pursu~nllO section 107(d) of the At:!. 42 U.S.C § 7407(d). the Admi is r~lor 

promulgmed lists of auainrnent status designations for each air 'lllali!)' cuntroi regiun 

('"AQCR'") in c\'ery state. TImse list, ilkntify the altainmcnt ~tatus uf each AQCR fur 

each oflhe criteria pollutants. The lt ainm~m status designations for the Arizona AQCRs 
arc listed al 40 C.F.R. § 8 1.303. 

], Sun State engages in residential construction projects throughout Maricopa County. 

Arizona. These projects arc subject 10 the jurisdiction of [he Maricopa Coullty Air 

Quality Department ("MCAQD" or the ··Dep~rtmcnt"). EPA has designated Maricopa 

County as 3 seriOllS nonatlainmcnt area for the NAAQS for particulate matter. iIT 40 

C.F,R. § 8!.303. 

4. Section J JO of the Act, 42 U.S.c. § 7410. requires cuch slale to adopt and submit to EPA 

a plan which provides for the implementation. mainwnana. and enforcement of primary 

and ~ccondary NAAQS in the State. Upon approval by EPA. the plan becomes part of the 

"applicable implcrnClllalion plan" (or "SII"') for the Slale. Pursuant to scction J 13(;\)(1) 

of the ACI, 42 U.S.C. ~ 74 13(a)( I), EPA may enforce violations of the SIP. 

5. MCAQD Regulation 1. Rule 2 was approved into and made a part of the f~demlly 

enforceable SIP pursuant to 42 US.c. ~ 7410 on August 17, 1982.' 

6. MCAQD Regu lation 3. Rule 310 was approved into and made" pan of the federJl 1y 

enforceable SIP pursuant to 42 U.S.c. § 7410 On August 6. 2002 ' 

7. Section 81 of l\'lCAQD Rule 2 defincs "source" as "'any facility. equipment. machine, 

inciner;llor, structure. building. device or other article (or combi nation therenD which is 

locilted on one or more comiguous propcnies and which is owned or operated by the 

same person (or by persons under common control) and which emil.S or may emit an air 

'47 Fed. R~g. 26382 (June 18, 1982). 

' 67 Fed. Reg. 487 18 (July 25, 2(02). lli also 62 Fed. Reg. 41856 (Aug. 4, 1997) 

(previous version of Ru le 310 was incorpomted into SIP on September 20. 1997). 

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pollutML" 

8. Section 7 I of J\lCAQD Rule 2 defincs "pollutant" as "an air contaminant the emi,sion or 

amhi~nt conccntration of which is regulated pUT1\uant to these rules and regulations:' 

9. Section 7 of MCAQD Ruic 2 defines "air contaminants" to include "smoke. vapors. 

chemical. paper. dust. soot. grime. carbon. (urnes, gases. sulfuric acid mist. aerosols. 

aerosol droplets. odors. paniculate mailer. windbome malter. radioactive materials. 

noxious chemicals. or any other material in the outdoor atmosphere. " 

10. Section 69 of MCAQD Rule 2 defines "person"" as "nny public or private corporation. 

company. p;lftnership. finn. association or society of persons. the Feder.!.l Government 

and any of its depanments or agencies. the State and any of its agencies. departments or 

political subdivisions. as well as a natural person." 

1 J. Section 102 of MCAQD Rule 310 provides that "[tJhe provisions of this nile shall apply 

to all dust gcnerating opemtions except; nonna! fann cuhural practices ... and open 

areas. vacant lots. unpaved parking lots, and unpaved roadways which are not located at 

SOurCe, that require any permit under these rules." 

12. Sedion 208 of /\."JCAQD Rule J 10 defines "dust generating operation" as "any activity 

capuble of generating fugitive dust. including but not limited 10. land clearing. 

eanhmoving, weed abatement by di>cing or blading. excavating. construction, 

demolition. mmerial handling .• 'itor~ge und/or tmnsporting operalions. vehicle usc and 

movement, the oper~tion or any outdoor cljuipmcnt, or unpuI'cd parking lots . . .. 

13. Section 110 of MCAQD Rule 310 ddines ""earthmoving operation" as "[tlhe usc of any 

equipment for:tn activity which may generate fugitivc dust. st,ch as but n01limited to. 

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cuning and filling. grading. levcling. excavating. tH:nching. loading or un loading of bulk 

materials. demolishing, blasting. drilling, adding to or removing bulk material:; from open 

storage pile~. back filling. soil mulching. landfill operations. or ..... eed abatement by 

discing or blading." 

14. Section 201 of MCAQD Rule 3 ! 0 defi nes "bnlk material" as '"( alny I1wteri al, including 

but not limited to. eanh. rock. silt, sediment, sand. gm\'el, soil, fill, aggregme Jess than 2 

inches in kngth or diame ter (i.e. aggregate base course (ABC»), din, mud, demolition 

debris. conon. trash. cinders. pumice. saw dust. feeds. grains. fenilizcrs, and dry concrete, 

which arc capable of producing fug;ti ve dust at an industrial, inst itutional. commercial. 

govemmental. construction. andlor d~l1lolit on site," 

15. Section 22 1 of MCAQD Rule 310 defines "owner andlor opemlOr" as "raIny person who 

owns, leases. oper;l\e~. controls, or supervises a dust generating operation subject to the 

rcquirements nf this ru le'" 

16. Section 203 of /I.'ICAQD Rule 310 defines "carry-outJtrackout" as "\ aJny and all bulk 

materials that adhere 10 and agglomerate on the exterior surfaces of motor vehicles. haul 

trucks. andlor ~'quipment (including tires) and (hat h~ve fa llen onto a paved puhlic 

roadway:' 

17. Section 235 of MCAQD Rule 3 10 defines "work site" as "[a]ny property npon which any 

dust generating operations and/or earthmoving op.:rutions occur" 

18. Section 30Ll(b) of MCAQI) ~ule 310 provides that the owner and/or operator of a 

source engaged in spillage. carry-out. erosion, and/or traekout activities mllst .. [ c I leanup 

spillage. carry-out. erosion. andlor tr~l koul on the following time schedule: (I) 

, 
Immediately. when spillage, Carry-oUl, andlor trackOUI extends a cumulative distance of 

50 linear feel or more .... " 

H NIlINGS 01<' fACT 

19. Sun State engages in commercial and residential construction projects throughout 

Maricopa County. Arizona. 

20. AI all times relevant \0 [hi, notice , Sun Slale engaged in tl commen:ial construction 

project (the "Project"') ncar the imcn;cclion of 89" Avenue and Cactus Road in Peoria. 

Arizona. 

21. The Project involved imponation, expon, excavation, andlor storage of sand. soil . gravel. 

and other bulk materials as thaI lmn is defined in seclion 201 of II-\CAQD Rule 3 10. 

22. The Project was a "source" as Ihallenn is defined in section Sl of MCAQD Rule 2. 

23. TIle Project was a "dust generating operation" as (hut 1enn is de fmcd in seclion 200 of 

MCAQD Rule 310. 

24. The Project was an "~anhmo"ing operation" as th~tterm is defined in section 2 10 of 

r..-lCAQD Rule 310. 

25. Sun State is a "pt:rson" as that tenn is de fined in section 69 of :>'·ICAQD Rul e 2. 

26. Sun Stale is an "owner andlor operator" as thaltenn is defined in =tion 221 of MCAQD 

Rule 310. 

27. On or about February 8, 2007, an Inspector from MCAQD inspected the Project. 

28. During his inspection of the Project. the MCAQD inspector observed thm the Project 

involved imponation. expon. excavation. andlor storJge of sand. ~oil. grJvel. and other 

bulk materials. 

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29. During his in,pection of the Project, the MCAQD inspector observed Imckout that 

extended more than 50 linear feet from the entranccsle:o:its to the Project. 

30. During his inspection of the Proj~ct. the !I.'iCAQD inspector obscf1.·ed that Sun State 

fail~d to immediately clean up the trackou! described abow. 

31. On or about February 8, 2007, MCAQD issued a notice of ol~tion to Sun State, citing 

its failu ~ to immediately clean up trackout extending more than 50 line~f fcct. as 

re'loired by the MCAQD rules. 

n NDlNGS 011 VIOLATION 

32. On or about February 8. 2007. Sun State violated ~eetion 30S.3(b}(l) of MCAQD Rule 

310 by fai ling to cle~n up trackout xtending more than 50 linear fCel from the 

entrancesle:o:its to its Project ioctltcd near the intersection of 89'" A ve llue and Cactus 

Road. PCQria. AriZOlIa. 

ENFO IKEI\IENT 

Section 113{a)(1) of the Act provides tha t at any time after the expiration of 30 days 

following the date of the issuance of this NOV, EPA may. without regard to the period of 

Violation. 

issue an order requiring comph:mee with the requirements of the SIP or pern'it. or 

issue an administrative penalty order pursuant to section 113(d) for civil 

administrJtiw. penalties of up to S32500 per day of vioiation, or 

bring a civil action pursuant to section 1 J 3(b) for injunctive relief and/or civil 

penalties of not more than $32500 per day for each violation. 

42 U.S.c. § 7413{a){I). as Ilmended by Pub. L. No. 104-34. Funhermore. for any person who 

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knowingly violates any SIP or pennit requirement more than 30 days after the date ofthc 

issuance of the NOV. section I 13(e) provides for criminal penalties Of imprisonment. or both. 

In addition. under section 306(a), the regulations promulgated thereunder (40 C.F.R. Pan 

32), and Executive Order 11738, fucilities to be used in fedentl contracts. grants. and loans must 

be in fu ll compliance with the Act and all regulations promulgated ptlrsuant to it. Violation of 

the Act may result in the suhjec! facility being declared ineligible for participation in any fedentl 

contract. grant. or loan. 

PENA LTY ,\ SSF$SMRNT CRITERIA 

Section t 13(e)( 1) of the Act stutes that the Admini,trator or J conn. as appropriate, shall. 

in detefmining the amoum of any penalty 10 be assessed, take inlO consider.uion (in addition to 

snch other factDl'S as justice may require) the siu of the business, the economic impact of the 

penalty On the business. thc violator's full compliance history and good faith attempts 10 comply. 

the duration of the violation as established by my credible evidence (including evidence other 

than the applicable test method), payment by the violator of penalties previousl y a~scsS('d for the 

same vio!:..!i"n, the eeonomie benefit of noncompliance. and the seriousness of the violation. 

Section 113(e)(2) of the Act allows the Administrator or a court to assess a penalty for 

each day of violation. For the purpose of de ~nn ning the number of days of violation. where the 

EPA makes a prima facie showing that the conduct Of events giving rise to this violation are 

likely to have continued or recurred past th~ date of this NOV. EPA shall presume (he days of 

violation to include the date of this NOV and each md every day thereafter umil the violator 

e,tabh,he.< th~t <'ontinuou, enmpliance has been achieved, execpt to the extent that the violator 

can prove by a prepondcran<:t of th~ evidence that there were intervening days during which nO 

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